Red Flag Laws: Definition, Effects, and Debate

Anti-Trump protestors and a Trump supporter argue following a mass shooting which left at least 22 people dead, on August 7, 2019 in El Paso, Texas.
Protestors after mass shooting in El Paso, Texas. Mario Tama / Getty Images

Red flag laws are gun violence prevention laws that allow courts to order the temporary confiscation of firearms from persons deemed to pose a risk to others or themselves.

Key Takeaways: Red Flag Laws

  • Red flag laws are state gun violence prevention laws which allow police to confiscate firearms from persons deemed by a court to pose a risk to others or themselves.
  • As of August 2019, 17 states and the District of Columbia had enacted red flag laws.
  • After deadly mass shootings in El Paso, Texas, and Dayton, Ohio, President Trump and a bipartisan group of Congress members have indicated their support for red flag laws.

Along with gun control proposals, such as universal gun-buyer background checks, raised in the aftermath of shootings like those in Sandy Hook, Parkland, El Paso, and Dayton, demands to enact “red flag” laws have become common. As of August 2019, 17 states and the District of Columbia had enacted red flag laws.

Red Flag Law Definition and Mechanics

Red flag laws permit police or family members to ask a state court to order the temporary removal of all firearms from persons believed to present a danger to others or themselves. In deciding to issue such orders, known variously as Extreme Risk Protection Orders (ERPOs) or Gun Violence Restraining Orders (GVROs), the courts consider the past actions and statements—including those posted on social media outlets—made by the gun owner in question. If the court decides to issue the order, the gun owner must surrender all firearms to the police for a specified period of time. In addition, the person named in the order is banned from buying or selling guns during that period.

Refusing to fully comply with a red flag protective order is a criminal offense. Guns seized under the order are returned to the owner after a set period of time unless that period is extended by the court.

Examples of evidence required by the courts to justify granting gun confiscation orders include:

  • A recent act or threat of violence (involving a firearm or not)
  • Evidence of serious mental illness
  • History of domestic violence
  • Reckless use of a firearm
  • Evidence of substance abuse or alcoholism
  • Sworn testimony by witnesses

The specific legal provisions of red flag laws and how they are enforced vary from state to state.

Are Red Flag Laws Effective?

Connecticut was one of the first states to enact a red flag law in 1999. According to a 2016 study published in the journal of Law and Contemporary Problems, the 762 gun removals under Connecticut's “risk warrant” law from October 1999 through June 2013 resulted in one suicide prevented for every ten to eleven gun seizures executed. The study concluded that “enacting and implementing laws like Connecticut’s civil risk warrant statute in other states could significantly mitigate the risk posed by that small proportion of legal gun owners who, at times, may pose a significant danger to themselves or others.”

Are Red Flag Laws Constitutional?

Many gun-rights advocates say that red flag laws infringe on gun owners’ Second Amendment right to “keep and bear arms,” as well as their right to due process of law as provided by the U.S. Constitution. Guns, they argue, are personal property, and both the Fifth and 14th Amendments specifically provide that the government—including the courts and police—may not deprive citizens of property without due process of law.

The argument is based on the fact that the court hearings held to decide if an individual poses a threat are held ex parte, meaning that the person whose guns might be temporarily confiscated is not present at the hearing. This, critics say, violates the Sixth Amendment’s guarantee of the right of accused persons to a face-to-face confrontation with witnesses against them. 

However, hearings on all types of restraining and protective orders are typically held ex parte out of concern for the safety of the complainant and witnesses. 

Red Flag Law Debate

A Washington Post-ABC News poll conducted in April 2018 found that 85% of registered voters nationwide support laws that would “allow the police to take guns away from people who have been found by a judge to be a danger to themselves or others.” States with red flag laws have reported similar levels of public support for the legislation.

In March 2018, the National Rifle Association (NRA), which had helped defeat red flag legislation in Utah and Maryland, suggested it might be open to such laws under a strict set of conditions, including a court finding by “clear and convincing evidence" that the person in question poses a significant risk of danger. Despite this statement, the NRA went on to help block red flag legislation in Arizona in 2019.

In Congress, virtually all Democrats and a few Republicans are receptive to red flag laws. The day after the mass shootings in El Paso, Texas, and Dayton, Ohio, killed 31 people, President Donald Trump urged states to implement red flag laws to remove guns from “those judged to pose a grave risk to public safety.” In televised remarks from the White House on August 5, 2019, Trump stated, “We must make sure that those judged to pose a grave risk to public safety do not have access to firearms and that if they do, those firearms can be taken through rapid due process.”

States With Red Flag Laws

As of August 2019, red flag laws had been enacted in 17 states and the District of Columbia. Twelve states enacted red flag laws after the shooting at Stoneman Douglas High School in Parkland, Florida, on February 14, 2018, left 17 dead. The states of California, Connecticut, Indiana, Oregon, and Washington, had enacted red flag laws prior to 2018.

Map showing the US states that had enacted red flag gun violence prevention laws as of August 2019.
The 17 states and District of Columbia (in red) that had enacted red flag gun violence prevention laws as of August 2019. Creative Commons

With only slight variations, all current red flag laws allow family members and law enforcement to petition a state judge to issue ERPOs directing the confiscation of all guns from the individual they believe poses a threat to their safety. In all cases, the petitioner must present evidence of why the gun owner poses a threat to others, as well as to himself or herself. If the ERPO is granted, the named individual’s guns are confiscated and held by police for a set minimum period, after which the gun owner must prove to the court that he or she no longer poses a risk in order to get their firearms back.

Here is a list of who is allowed to request the issuance of an ERPO gun removal order in each state:

  • California: Family, household members, and law enforcement
  • Colorado: Family, household members, and law enforcement
  • Connecticut: One state attorney or any two police officers
  • Delaware: Family, household members, and law enforcement
  • District of Columbia: Family, household members, mental health professionals, and law enforcement
  • Florida: Law enforcement only
  • Hawaii: Family, household members, teachers, medical professionals, coworkers, and law enforcement
  • Illinois: Family, household members, and law enforcement
  • Indiana: Law enforcement only
  • Maryland: Family, household members, certain health professionals, and law enforcement
  • Massachusetts: Family, household members, and law enforcement
  • Nevada: Family, household members, and law enforcement
  • New Jersey: Family, household members, and law enforcement
  • New York: Family, household members, school administrators, and law enforcement
  • Oregon: Family, household members, and law enforcement
  • Rhode Island: Law enforcement only
  • Vermont: State attorneys or the office of the state attorney general only
  • Washington: Family, household members, and law enforcement

As of August 2019, the state legislatures of Michigan, Ohio, Pennsylvania, and North Carolina were considering red flag legislation.

Federal Red Flag Gun Control Legislation

In February 2019, Senator Dianne Feinstein, Democrat of California, introduced the Extreme Risk Protection Order Act (S. 506), which would offer grants to assist states in developing red flag laws and make possessing a firearm in violation of a state red flag law a felony violation of federal firearms law. On August 5, 2019—the day after the El Paso and Dayton shootings—conservative Republican Senator Lindsey Graham stated that he would propose bipartisan legislation to encourage more states to adopt red flag laws.

Sources and Further Reference